By Marjorie Johnson, J.D.
Announcing that "Hispanic" describes a "race" for purposes of both Section 1981 and Title VII, the Second Circuit rejected a village employer’s urging that a $1.35 million jury verdict in favor of a white Italian-American employee should be tossed because it could not have engaged in "race" bias by denying him a promotion in favor of a white Hispanic candidate. However, the appeals court vacated the award and ordered a new trial since the district court erroneously allowed former administrators to provide lay opinion testimony in which they "nakedly" speculated that the mayor considered race in his appointments (Village of Freeport v. Barrella, February 16, 2016, Cabranes, J.).
The Italian-American police lieutenant sued the village and its black mayor alleging they engaged in race bias under Title VII and Section 1981 by failing to promote him to police chief, despite his allegedly superior qualifications and top score on the exam. Instead, they hired the Hispanic candidate who they flaunted as the "first Hispanic" and "first Latino" chief. Following a trial, at which former top administrators testified they thought the mayor considered race in his appointments, a jury found in his favor and awarded him $150,000 in backpay, $1,000,000 in front pay, and (against the mayor only) $200,000 in punitive damages.
Hispanic is a "race." The Second Circuit squarely rejected the defendants’ assertion that "Hispanics" do not constitute a distinct "race" as a matter of law, and that therefore the employee and the Hispanic candidate were both white under the federal antidiscrimination statutes. Although they invited the appeals court to answer the vexed question, "what is race?" it only found it necessary to resolve whether "Hispanic" is a "race" for purposes of Section 1981 and Title VII.
The court then underwent an exhaustive analysis of the federal government’s "less-than-straightforward" use of the terms "race" and "Hispanic," including use of those terms by the Census Bureau. Despite societal confusion regarding Hispanic identity, it explained that the existence of a Hispanic "race" has long been settled with respect to Section 1981. Thus, two people who both appear to be "white" and would both identify as "white" on a Census form may nonetheless belong to different "races" for purposes of Section 1981. Accordingly, Hispanics comprise a distinct race under Section 1981.
"Hispanicity" under Title VII. Although the issue was not as clear under Title VII, the court determined that discrimination based on Hispanicity, or lack thereof, also constituted race bias under that statute. Significantly, claims of race bias are analyzed identically under Title VII and Section 1981 in other respects. Moreover, the circuit had repeatedly assumed that claims of ethnicity-based bias (including bias based on Hispanicity) were cognizable as claims of race bias under Title VII, albeit without holding so explicitly.
Moreover, the evidence presented at trial unambiguously showed that the mayor considered the selected candidate to be Hispanic, as he repeatedly identified him as such and referred to him as the village’s "first Hispanic police chief." In contrast, there was no indication that anyone considered the employee, who identified himself as "White of Italian descent," to be Hispanic. Thus, the jury reasonably concluded that the two belonged to different "races."
The court also rejected the mayor’s qualified-immunity argument. While he contended that he reasonably believed federal law did not forbid discrimination based on Hispanic ethnicity, "it has been clear since the Reagan Administration" that Section 1981 prohibits employers from discriminating based on Hispanic ethnicity or lack thereof.
New trial warranted. However, the defendants were entitled to a new trial since the district court erred by allowing former administrators to engage in "naked speculation" about the mayor’s motivation for promoting the Hispanic candidate, in violation of Rule 701(b) of the Federal Rules of Evidence. Most notably, the former assistant chief of police and former chief of staff each testified that the mayor had recommended individuals for promotion based on race, despite their admissions that they had no personal knowledge of the mayor’s selection process and only the "vaguest idea" of the candidates’ qualifications. Since the case was "factually very close," this error was sufficiently prejudicial to warrant a new trial.
For instance, the record also indicated that the mayor and Hispanic candidate were longtime friends and fire department colleagues, while the employee barely knew the mayor. The mayor also testified that it was politically advantageous to appoint the Hispanic candidate since he was a native of the village, whereas the employee never lived in the village nor had any political allies there. Additionally, there was conflicting evidence regarding whether the village’s hiring disproportionately favored non-whites and whether the employee was actually more qualified.
Role of "identity politics." Finally, the mayor’s repeated references to the chosen candidate as the "first Hispanic" or "Latino" chief did not necessarily indicate race bias. An employer’s stated desire for diversity in the workplace does not, without more, establish discriminatory intent. Moreover, neither Section 1981 nor Title VII categorically forbids politicians from considering an appointment’s political implications. Indeed, "the urge of politicians to take credit for hiring or promoting members of hitherto underrepresented communities has often ‘been a powerful means of achieving the social and political integration of excluded groups." Thus, an otherwise lawful employment decision does not become unlawful merely because the decisionmaker believed that some voters might evaluate that decision at least partly through "the lens of identity politics."

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